Senate Indian Affairs Members Criticize FCC Over Spectrum Outreach to Tribal Nations

Some Senate Indian Affairs Committee members voiced skepticism Wednesday about the extent of FCC efforts to improve outreach to tribal governments to improve those entities' access to spectrum. The hearing focused on GAO's 2018 findings in its committee-sought study on tribal spectrum access. That report found deficiencies in FCC outreach, and the commission said at the time of the study's November report it would follow through on the recommendations (see 1811140069). Senate Indian Affairs members last year criticized what's seen as deficiencies in FCC practices for determining broadband coverage on tribal lands (see 1810030055).

Senate Indian Affairs Vice Chairman Tom Udall, D-N.M., is among the critics, believing the commission “has fallen short” of its obligations to consult tribal governments. “I think you're shirking your responsibility” despite FCC claims to the contrary, Udall said. He cited the U.S. Court of Appeals for the D.C. Circuit's August ruling that partially vacated a 2018 wireless infrastructure order after a challenge led by the United Keetoowah Band of Cherokee Indians (see 1908090021). Tribes contended the FCC was abrogating its federal legal obligations to consult with Indian tribes on a government-to-government basis (see 1810160067).

Committee Chairman John Hoeven of North Dakota and other Republicans were less critical of the FCC's actions, though they still acknowledged shortcomings in the commission's past efforts.

Wireless Bureau Chief Donald Stockdale said the FCC “takes very seriously” its obligation to maintain communication with tribal nations. He noted the D.C. Circuit in August rejected the challenging tribes' insufficient consultation claim as a basis for overturning the order. FCC Chairman Ajit Pai's top priority remains closing the digital divide, including on “rural tribal lands,” Stockdale said. The commission is increasing outreach to tribal stakeholders in response to GAO recommendations, including via its Office of Native Affairs and Policy.

The FCC's revamp of its universal licensing system will help improve tribal stakeholders' access to information on current spectrum license holders, Stockdale said. The Wireless Bureau and Office of Economics and Analytics are developing a sample of spectrum licenses on tribal lands to help inform future spectrum policies. He also cited FCC efforts to encourage tribal stakeholders' participation in the 2.5 GHz educational broadband service band and 3.5 GHz citizens broadband radio service spectrum auctions.

Gila River Telecommunications supports the decision to open a “tribal priority” window for the 2.5 GHz band but believes the commission must begin auctioning other spectrum in “more discrete geographic areas" to ensure more tribes can participate, said Chairperson Belinda Nelson. She said the FCC should do more to help tribes participate in the secondary spectrum market and revamp its tribal lands bidding credit policy, which requires a bidding entity to commit to building out to 75 percent of a tribe's population within three years.

Santa Fe Indian School Chief Technology Director Kimball Sekaquaptewa lauded the agency for creating the tribal priority window for 2.5 GHz but is concerned “that without the technical assistance to educate and help navigate the licensing process that not enough tribes will succeed.” She urged more assistance in navigating the sometimes complicated rules for spectrum auctions. “The 5G revolution promises faster speeds but currently requires a fiber transport and small cell antennas that are very close together, which can exacerbate the permitting challenges to build on tribal land,” Sekaquaptewa said.

Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, questioned how the commission decided the parameters of the 2.5 GHz tribal window and other matters. Many processes appear to be “too labyrinthine to be workable,” he said. “The question becomes whether you're taking seriously” the federal government's obligation to maintain a nation-to-nation relationship with tribal entities.

Sen. Catherine Cortez Masto, D-Nev., asked whether issues with coordination between the FCC, NTIA and USDA have been an impediment to closing the tribal digital divide. She invoked her Advancing Critical Connectivity Expands Service, Small Business Resources, Opportunities, Access, and Data Based on Assessed Need and Demand (Access Broadband) Act. HR-1328/S-1046 would establish the Office of Internet Connectivity and Growth within NTIA (see 1904050059).